Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brannock v. Brannock

Court of Appeals of Kentucky

November 8, 2019

AMITY BRANNOCK APPELLANT
v.
WILLIAM BRANNOCK APPELLEE

          APPEAL FROM SCOTT CIRCUIT COURT HONORABLE LISA HART MORGAN, JUDGE ACTION NO. 17-CI-00156

          BRIEFS FOR APPELLANT: William D. Tingley Louisville, Kentucky

          BRIEF FOR APPELLEE: Ashley Larmour Georgetown, Kentucky

          BEFORE: CLAYTON, CHIEF JUDGE; NICKELL AND L. THOMPSON, JUDGES.

          OPINION

          THOMPSON, L., JUDGE:

         Amity Brannock appeals from two orders of the Scott Circuit Court. The first order held that William Brannock did not owe any child support arrearages because the parties modified their child support agreement. The second order denied Appellant's Kentucky Rules of Civil Procedure (CR) 59.05 motion and CR 60.02 motion. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         The parties were divorced by a decree of dissolution of marriage entered on January 26, 2010. Incorporated into their decree was their marital settlement agreement dated December 29, 2009. The agreement stated that Appellee agreed to pay Appellant $1, 000 per month in child support for their two minor children. The agreement also stated that the agreement could not be modified or altered unless done so in writing and signed by both parties. After executing the settlement agreement, but before the divorce decree was entered, the parties attempted to reconcile and began cohabitating in a house they purchased together.[1]

         The cohabitation lasted for about six years, with the parties' final date of separation being March 26, 2016. During this six-year time period, Appellee did not pay child support. According to testimony, he instead paid all of the mortgage on the new house and debt incurred during the cohabitation period. Appellant, on the other hand, paid for the household and child-related expenses.

         In February of 2017, Appellee filed a motion seeking modification of child support and requested that the court declare he did not owe child support arrearages.[2] A child support wage withholding order was entered on May 1, 2017, against Appellee. The order directed the withholding of $1, 000 per month and named Appellant as the child support recipient. Appellee then again moved to modify his child support and requested the court declare that he did not owe child support arrearages from the period of cohabitation. In response, Appellant maintained that she was entitled to child support during the cohabitation period, which would amount to over $70, 000 in arrearages.

         Briefs were filed, and a hearing was held regarding the child support arrearage issue.[3] During the hearing, Appellee testified that he and Appellant agreed that he would pay the mortgage and accrued debt and that Appellant would pay the household and child-related expenses. Appellee indicated this arrangement was in lieu of the child support set forth in the marital settlement agreement. Appellee introduced into evidence an email and text messages which memorialize and confirm this arrangement. The email and text messages were dated after the final separation of the parties in 2016. Appellant was not asked any questions during the hearing regarding the email, text messages, or alleged modification of the child support agreement. There is also no affidavit in the record regarding this issue. The only information is a general denial of any agreement set forth in pre-and post-hearing pleadings.

         On July 9, 2018, the trial court entered an order regarding the child support arrearage issue. Citing Whicker v. Whicker, 711 S.W.2d 857 (Ky. App. 1986), and Vanover v. Vanover, No. 2002-CA-001177-MR, 2005 WL 500274 (Ky. App. Mar. 4, 2005), [4] the trial court held that the parties orally modified their child support agreement. The court also held that Appellant should be estopped from recovering child support arrearages because it would be unconscionable to permit her to remain silent on the child support issue and allow Appellee to pay the mortgage in lieu of child support, but then allow her to recover a $70, 000 windfall once the relationship ended. The court cited to Sparks v. Trustguard Ins. Co., 389 S.W.3d 121 (Ky. App. 2012), and Dixon v. Dixon, No. 2016-CA-001571-ME, 2017 WL 5013538 (Ky. App. Nov. 3, 2017), disc. rev. denied and opinion ordered not published (Ky. Apr. 18, 2018), in support of its holding.

         On August 8, 2018, Appellant filed a CR 60.02 motion asking that the court vacate the July 9, 2018 order because she did not receive a copy of it. Appellant requested that the court enter a new order and ensure the clerk mailed counsel a copy. The implication of this motion was to allow Appellant to timely file a CR 59.05 motion to alter, amend, or vacate. Because Appellant did not receive notice of the July order, she was unable to file a motion to alter, amend, or vacate within the ten-day timeframe required by the rule.

         Also, on August 8, 2018, Appellant filed a motion pursuant to CR 59.05 and CR 52.02. She requested that the trial court make additional findings and argued that the court erred in holding that Appellee did not owe past child support. Appellant also filed a notice of appeal and later moved for the Court of Appeals to hold the appeal in abeyance pending the outcome of the trial court's ruling on her motions.

         On September 4, 2018, the trial court entered two orders. One order denied Appellant's CR 60.02 and CR 59.05 motions. The other order was an amended order regarding the child support arrearage issue which changed a few clerical errors brought to the court's attention.

         On September 10, 2018, Appellant filed an amended notice of appeal. The new notice of appeal listed the amended order and order denying her post-hearing motions as the basis of the appeal. This appeal followed.

         ANALYSIS

         Appellant's first argument on appeal is that the trial court erred in denying her CR 60.02 motion because the clerk failed to mail a copy of the July 2018 arrearage order to her counsel; therefore, she was unable to timely file her CR 59.05 and CR 52.02 motion. Even though Appellant makes this argument, she also asks that we decline to review it. The trial court denied Appellant's CR 60.02 motion and declined to take under submission her CR 59.05 and CR 52.02 motion; however, Appellant indicates that the trial court's September 4, 2018 amended order regarding the child support arrearages did take into account her motions and effectively granted her post-hearing motions. Because Appellant asks us to take no action as to this issue, we will move on.

         Appellant's second argument on appeal is that the trial court erred when it failed to enforce the terms of the parties' marital settlement agreement, which required all modifications to be in writing and signed by the parties. Appellant cites to Jaburg v. Jaburg, 558 S.W.3d 11 (Ky. App. 2018), which holds that a court must adhere to the terms of a settlement agreement if it contains a clause which says that the agreement may not be modified unless in writing. Appellant argues that the settlement agreement executed between the parties in December of 2009 has such a clause; therefore, the child support payments could not be modified orally as between the parties or by the trial court.

We are unable to fully review this issue. CR 52.04 states:
A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02.

         Here, the trial court did not specifically rule as to what effect the modification clause in the agreement had on the child support arrearage issue. Also, although Appellant filed a CR 52.02 motion seeking additional findings of fact, she did not request additional findings as to this issue. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.